DM, R (on the application of) v Wigan Metropolitan Borough Council

1. In these proceedings the claimant, who I refer to hereafter as "D", who is a minor appearing by his litigation friend and father, who I refer to hereafter as "J", seeks judicial review of the decision of the defendant concerning (a) the provision of transport for the claimant to and from a specialist facility called "Leisure for All", (b) the provision of direct funding for aspects of D's care and (c) the provision of respite care.

2. The claimant's case is that the refusal to provide transport and respite care is either in breach of a statutory duty and therefore unlawful, or alternatively the failure to assess the claimant as entitled to such provision is irrational in the public law sense. The failure to provide direct funding is attacked on the ground that the decision not to provide such funding has been decided by reference to the wrong question or the wrong criteria, and in any event is fatally flawed by a failure to give reasons or reasons that adequately and intelligibly explain why the authority has decided to refuse to make direct payments.

3. There is no serious dispute as to the factual background. D was born on 6th April 1998 and is aged 13. He lives at home with his parents and younger sister. He has been diagnosed with ADHD and autism and presents with what is described in the skeletons and evidence as "very challenging" behaviour, which puts him and others at risk if not adequately supervised. An illustration of the issues that arise come from the core assessment which commences in the claimant's bundle at page 20. At page 25 in the bundle, under the heading "EDUCATION: CHILD/YOUNG PERSON'S DEVELOPMENTAL NEEDS - SOCIAL WORKER'S SUMMARY", appears the following:

4. As is apparent from what I have said already, there is in [D]'s past a history of physical violence towards others. There has also been the use of language which is insulting and threatening. There are various examples contained in the papers, but for present purposes it is necessary only to identify one, which appears in D's father's most recent statement at C263 in the bundle:

5. A core assessment was carried out by the defendant. Notwithstanding the difficulties that I have referred to, which have had an enormous, and perhaps unimaginable, impact on the lives of the family as a whole, it has never been suggested that the claimant ought to live other than with his family, at any rate on a permanent basis. In the carer's assessment prepared by the defendants and in answer to the question, "Do you want to continue to care, and if so what do you think you need to be able to continue in your caring role? How do you think we can support you?", D's parents are recorded as saying:

6. In consequence of the difficulties I have only inadequately described, the family have suffered financial difficulty. The defendant's core assessment records in the bundle [C40], under the heading "FAMILY AND ENVIRONMENTAL FACTORS: GENERAL-SOCIAL WORKER'S SUMMARY", the following:

The health of both parents has been adversely affected as a result of the issues to which I have referred - see, in particular, the core assessment, where it is confirmed under the heading "FAMILY AND ENVIRONMENTAL FACTORS: GENERAL".

8. It is common ground that in consequence of his disabilities the claimant is a person in respect of whom the defendant has functions under s. 29 of the National Assistance Act 1948. The significance of this will become apparent when I turn to the statutory framework in a moment.

9. As will be apparent from what I have said already, various assessments have been carried out by the defendant in respect of the claimant's needs and how they ought to be met. There have been previous judicial review proceedings in respect of those assessments. The most recent assessment is the care plan, which was prepared and completed on 6th September 2010. In that document, under the heading "CHILD/YOUNG PERSON'S DEVELOPMENTAL NEEDS - EMOTIONAL AND BEHAVIOURAL DEVELOPMENT", the following appears:

10. In relation to the questions concerning respite care and direct payments, these are considered in the most recent carer's assessment under the heading "What do you think would improve the quality of your life?", where the parents are recorded as saying that:

11. The defendant accepts that the claimant benefits enormously from attending the specialist facility that I have referred to already and will continue to refer to as "Leisure for All". Currently a placement is available once a week on Sundays between the hours of 12 noon and 4 pm. The incidental effect of D attending between these hours on a weekly basis is that it provides D's parents with limited respite during those hours.

12. The difficulty that remains concerns transport. The claimant's case, advanced by his father, is that (a) the claimant cannot be safely transported using public transport facilities because his behaviour is not predictable (see by way of example the incident described in J's witness statement set out above) and (b) D ought to be attended by professionals while travelling, as he is currently when travelling to and from school, because his father says he cannot, and cannot reasonably be expected, to carry out that task.

13. The defendant's position, in summary, is that set out in the second statement of Miss Hewer, which is in these terms:

14. As to the scheme referred to at the end of that quotation, whilst the evidence appears to establish that it would be available in order to transport the claimant, and possibly his father, to Leisure for All on Sundays, it does not address the supervision issue to which I have already referred.

15. It is common ground that s. 2 of the Chronically Sick and Disabled Persons Act 1970 applies to the defendant in relation to the claimant. Insofar as is material, that section provides:

16. Direct payments are regulated by statute and regulation. S.17A of the Children's Act 1989 is the primary legislative source in relation to such payments. That provision provides, insofar as is material, as follows:

17. The regulations that are relevant for present purposes are the Community Care Service for Carers and Children's Services (Direct Payments) (England) Regulations 2009. In regulation 1 the phrase "prescribed person" is defined as meaning a person falling within the description contained in regulation 2 or 4 who falls within s. 57(2) of the 2001 Act or s. 17A(2) of the 1989 Act. Regulation 4 is headed "Prescribed descriptions of persons under section 17A(1) of the 1989 Act - children's services", and provides as follows:

A refusal to provide an assessed need is therefore unlawful: see most recently R (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2010] EWCA Civ 1109.

19. For the reasons I have already summarised, the claimant contends that I should quash a decision taken by the local authority on 6th January 2011 to close the claimant's case and that I should remit both the current care plan and the carer assessment to the local authority with a direction that they be reassessed lawfully. The defendant's case is that the authority has not acted unlawfully or irrationally and that the applications should be dismissed.

20. It is convenient that I discuss the alleged errors under each of the heads adopted by counsel in the order that they were addressed in the course of submissions. This is the course I adopt.

Transport:

The claimant's primary case was that the failure to provide transport was unlawful, being contrary to section 2(1)(d) of the 1970 Act, because on a proper construction of the care plan, the relevant parts of which I have set out above, the defendant local authority had concluded that there was a need for such transport and thus were obliged to provide it, or otherwise act in breach of the duty imposed by the subsection and subparagraph to which I have referred. The section of the care plan relied upon by the claimant simply does not say what Mr Fullwood says it says, at any rate expressly. The whole of the text in that section of the relevant document is focused on the need to provide for facilities such as those available at Leisure for All, because the provision of such facilities would obviously benefit the future development of D, as is more fully explained by the defendant's officials elsewhere in the document. Nowhere is the question of transport touched upon. That being so, I do not see how it could be said that a breach of duty under section 2 arose in the circumstances of this case.

23. Mr Fullwood's alternative submission was that the care plan was defective, and irrationally so, because it failed to address the question of transport at all. Thus, it was his submission that no reasonable local authority, properly directing itself, could conclude that the claimant's requirements for support could be resolved without considering the question of transport.

24. In my judgment, this submission is well made. At the time that the care plan was drawn up the defendant actually knew that the claimant would require transport to get to and from the facility that had been identified, that is to say Leisure for All, was aware of the very difficult behavioural issues that existed in relation to the claimant, and furthermore was aware at the time when the report was signed off that temporary transport arrangements were in place which, on the basis of the evidence that I have set out above from the defendants, was meant to be a transitional arrangement that was designed to enable the claimant's father to cope with the issues that were likely to arise as a result of transportation of the claimant to and from Leisure for All. The care plan, however, simply ignores the issue, even though, on the defendant's own evidence, the issue was alive and the subject of a transitional arrangement the efficacy of which was yet to become apparent. Had a transport requirement been identified and the response been to refuse on resources grounds, that would have been unlawful for the reasons identified by Mr Fullwood. Simply to ignore the issue in the circumstances was, in my judgment, irrational in the public law sense, and probably unlawful as well, since no consideration on this basis appears to have been given to whether the claimant had a need which, if identified as being a need, the local authority would be bound to provide for pursuant to section 2 of the 1970 Act.

Respite care:

26. It was submitted on behalf of the local authority that respite care had been properly considered and was being provided by the willingness of the local authority to fund the claimant's attendance at Leisure for All.

27. I am wholly unconvinced by this analysis. The care assessment, I accept, appears to record an acknowledgement by the claimant's parents that respite day care would benefit the family as much as residential respite care. However, it is not clear, at any rate to me, whether the claimant's parents agreed to this simply because the local authority advised them that residential respite care was not available, as it is apparent they did in the earlier part of the document that I have set out above. Certainly nowhere in the assessment, or elsewhere at any event in correspondence passing between the parties, does the defendant clearly assess respite needs by reference to day care rather than residential care. There is no doubt that the facilities that the defendant could be required to provide included those identified in section 2(1)(f) of the 1970 Act. In my judgment, the carer's assessment document is flawed, first because it fails to set out an assessment at all in relation to respite, but rather purports to record an agreement reached between the parties on an uncertain and opaque basis and, secondly, because it appears to reject the concept of residential respite care, not on the basis of the best interests of the claimant or by reference to his needs, but on the basis that, even if assessed as needed, it would nevertheless not be provided because such facilities were not available. This was an impermissible approach because such facilities could, and in an appropriate case would have to be provided, by being bought in as a service by the defendant if the defendant was to avoid a breach of its obligations under section 2 of the 1970 Act. Again, therefore, in my judgment the assessment is flawed in relation to this issue.

Direct funding:

29. The challenge to this issue is essentially a traditional public law challenge based on defective reasoning and an absence of proper reasons being given. The first ground of challenge is that no, or no proper, reasons were given for refusing direct funding. It is common ground that an administrative body such as the defendant must adopt procedural fairness at common law, and whilst it is true that not every decision requires reasons to be given, a decision such as the one under consideration is not one of those for which no reasons are required. Where reasons are required, the length and depth of reasoning required differs depending upon the circumstances. It is the case, however, that where reasons are required as a minimum they have to be sufficiently intelligible and comprehensive to explain (a) what the decision is that has been taken, and (b) how and why it has been reached. The only reasons supplied to the claimant or his parents in relation to direct funding are those which are set out in the bundle at page 65 under a heading "Service provision for [D]", where, under the subheading "Provision", there is at number 4, "Direct Payments". Under the heading "Completed", there appears the following: "Assessment undertaken and agreement by Service Manager to Direct Payments. completed". Under the heading "Action" there appears the following:

30. It is plain that this is not a proper basis for rejecting a claim for direct payments, which is otherwise identified as being an entitlement, subject to quantification, in primary legislation. After the event explanations that have been offered to date include that in a statement filed on behalf of the defendants by Miss Hewer, who says that J could only be assessed as suitable to receive direct payments if Miss Hewer was " ... able to identify demonstrable and meaningful change in approach and attitude from [J] which is likely to result in the team having confidence in his ability to employ staff effectively". That approach does not attempt to apply the test identified in regulation 4 of the relevant regulations, the relevant part of which is set out above; much less does it appear to carry into effect the approach or practice identified in the guidelines issued in relation to the correct approach to be adopted to such decisions. There is, in my judgment, an additional difficulty. The reasoning set out in the statement does not appear to coincide with the reasoning set out in an internal e-mail of 28th July 2010, which in any event contains reasoning which was not at any stage communicated to the claimant, or at any rate not communicated to him until after the commencement of these proceedings.

31. In those circumstances the decision to close the claimant's case must be quashed unless it is agreed between the parties since the conclusion of the argument that that is the position in any event. The care plan and carer's assessment must, it seems to me, be remitted for reconsideration and reassessment in accordance with the relevant legal principles that I have attempted to identify above. It is not the function of this court to carry out assessments in place of the local authority, who at all times are the primary decision makers. It is only the function of a court of review such as this to interfere with decisions taken by decision makers where it can be demonstrated that the decisions taken are tainted with unlawfulness or irrationality in the public law sense. Thus it is that with these directions in place the local authority can proceed to re-examine the questions which I have referred to, applying the correct legal principles.

32. Given that this is the outcome, it would be wrong of me to say any more about the merits of the issues which have given rise to this application, which in the end will have to be the subject of further consideration by the local authority. I have, however, I think set out sufficient in this judgment to identify the problems that have arisen, the reasons why the decisions need to be re-examined and to have pointed in the direction of what the relevant legal principles are or where they can be found.